Tuesday, June 16, 2009

Day two of the Jammie Thomas trial produced several dramatic moments that, on the surface, appeared to be very bad news for the record label plaintiffs. Judge Michael Davis granted a defense motion to exclude numerous documents relating to the chain of title of the labels' copyrights, and he appeared to be on the verge of striking all of the plaintiffs' expert's testimony, only to pull back at the last moment. But I think these legal developments -- which occurred mainly outside the presence of the jury -- will ultimately amount to little or nothing. Here's a full recap:

The Two Defense MotionsLast night the defense filed its two midnight motions: one arguing that plaintiffs must bring certified copies of the "deposit copies" of the 24 songs at issue into the courtroom in order to prove their case, and the other seeking to exclude a batch of corporate documents that support the chain of title of plaintiffs' copyrights. Today's session began with argument on both these motions. On the deposit copies issue, Thomas attorney Kiwi Camara argued that the rules of evidence require that the plaintiffs introduce into evidence certified copies of the Copyright Office's deposit copies, so that the jury could compare the sounds they produce to the alleged copies on Thomas' computer. The labels' Matt Oppenheim countered that no case imposes such an onerous requirement, and he pointed to an email from Copyright Office General Counsel David Carson (see page 4)-- time-stamped 11:40 p.m. last night -- which noted that the Copyright Office regularly discards deposit copies after several years, so it isn't even clear whether the deposit copies of the copyrights at issue in this case even exist. The court agreed with Oppenheim, concluding that imposing a deposit-copy requirement would only force plaintiffs to go on a "fool's errand." Motion denied.

The defense fared much better with its motion to exclude the chain of title documents. Plaintiffs produced these documents to Thomas over a year ago, but they were not initially listed on the exhibit list for the re-trial, which, defense attorney Joe Sibley argued, mandated their exclusion. Plaintiffs' counsel Tim Reynolds argued that Thomas would suffer no prejudice if these documents were introduced, since her team had had them for so long, but Judge Davis was unsympathetic. Motion granted. So the documents -- most of which evidence a corporate takeover or name change -- will not come in. However, it does not appear this will preclude the plaintiffs from proving ownership. Here's why: this issue would come up when, for example, a witness for Label A testifies that it owns a copyright, and produces the registration form, but the form says the copyright was registered to Label B -- which was subsequently acquired by Label A. Plaintiffs would like the witness to be able to testify, "I work at Label A, and I know its corporate history and structure, and I know that we own this copyright because it was registered to Label B, and we bought Label B in 2006." They would also like the witness to buttress that testimony with corporate documents that confirm the acquisition -- documents that have now been excluded. It had seemed as though the defense was going to object to such witness testimony on "best evidence" or lack-of-personal-knowledge grounds, but they did not as to the Sony and Warner witnesses who have testified so far. Through those witnesses the labels admitted into evidence 11 copyright registrations so far, without defense objection based on the chain-of-title issue. In other words, the testimony of the witnesses appears to be sufficient to prove the chain of title, without the excluded documents.

Dr. Douglas JacobsonThe first witness of the day was plaintiffs' expert Dr. Douglas Jacobson, a computer security expert at Iowa State University. Jacobson recited a long list of credentials, and the extensive work he had done assisting law-enforcement authorities in computer investigations. (Sorry to disappoint Ray Beckerman, but the defense raised no Daubertobjection or other similar challenge to his testimony.) One female juror nodded in apparent approval as Jacobson mentioned that he had conducted investigations of child pornography. Jacobson was authoritative and a bit folksy, walking jurors through the basics of IP addresses, p2p networks, and Kazaa. He then turned to the specific evidence in this case, opining that evidence collected by MediaSentry, in conjunction with that produced by Thomas' ISP, demonstrated that she had downloaded and disseminated over 1,700 song files. Jacobson also testified about his forensic examination of a mirror of Thomas hard drive (a hard drive that it turns out was installed on Thomas computer after MediaSentry detected the infringement in February 2005).

Joe Sibley's cross of Jacobson was brief. He made a few "hired gun" points, including the fact that Jacobson has worked on more than 300 similar matters for the recording industry. And he got Jacobson to admit that he couldn't prove that Jammie Thomas, the actual human being, was the one who used the computer and ISP address associated with the infringement. "We can't put the face behind the computer, can we?" asked Sibley. "No," conceded Jacobson. Jacobson left the stand, and the jury went to lunch; all-in-all he seemed to have been a solid witness for plaintiffs.

But then the defense suddenly recalled Jacobson to the stand, outside the presence of the jury, to inquire about a narrow issue: the basis for his opinion that Thomas had connected an external hard drive to her computer after she got a new internal hard drive in March 2005. Jacobson admitted that one of the new bases for this opinion -- involving what he referred to as "footprints" -- had apparently not been previously disclosed to defense counsel. Sibley was livid. Judge Davis was just as livid; he said he was "contemplating striking all of Dr. Jacobson's testimony based on [plaintiffs' counsel's] behavior in this case." He then gave counsel an hour to go find cases saying he shouldn't. Things looked very, very bad for plaintiffs.

At oral argument on the defense's motion to strike, Reynolds fell on his sword, apologizing profusely to the court and opposing counsel for failing to disclose Jacobson's new information relating to the external hard drive. "I don't have a good reason" for not informing Thomas' counsel, but "there was no bad faith here," and the information related to a "minor issue," said Reynolds. Reynolds' contrition worked. Judge Davis backed off his threat to strike all of Jacobson's testimony, instead giving the jury the following instruction:

You heard testimony from Plaintiffs' expert, Dr. Jacobson, that there was evidence of an external hard drive connected to the computer that he examined. You are instructed that there is no basis for the testimony regarding the external hard drive and that you should disregard this testimony and all evidence referred to in connection with the testimony about the external hard drive.

I think this will turn out to be a complete non-issue. Remember: this external hard drive has no direct connection with Thomas' alleged infringement. The hard drive in her computer on Feb. 21, 2005 -- the date MediaSentry detected the files in her shared folder -- was apparently discarded after Thomas said it broke, and plaintiffs were never able to examine it. Thomas got a new internal hard drive at Best Buy in March 2005, and the external hard drive that was the subject of today's imbroglio was connected to Thomas' new internal drive well after that. This was a fairly small part of Jacobson's testimony, and he seemed to be well-received by the jury.

Kevin HavemeierPlaintiffs called Thomas' ex-boyfriend Kevin Havemeier; the two were involved at the relevant times in 2005. Plaintiffs attempted to use Havemeier to establish that Thomas knowingly produced to plaintiffs the "wrong" hard drive (i.e., not the one that was in her computer in February 2005). But his memory was very hazy, and Reynolds' attempts to refresh his recollection through his previous deposition testimony did little to clarify matters. Sibley asked Havemeier directly: "Did Jammie do it?" To which he responded: "Not that I know of." Reynolds rephrased that concession on re-direct, getting Havemeier to agree that he has "no information one way or the other" on Thomas' alleged infringement. I suspect jurors will accord Havemeier's testimony little if any weight.

Ryyan MakiMaki (and yes, that's "Ryyan" with 2 "y"s) is a manager at Best Buy's Geek Squad; he showed up in full Geek Squad regalia. Maki testified, based on Best Buy documents, that Thomas brought in her computer March 7, 2005, and that Best Buy replaced the hard drive. By Best Buy policy, the damaged hard drive would have been returned to Thomas, said Maki -- leaving the impression that Thomas had the incriminating drive in her possession but never produced it to plaintiffs. On cross, Maki testified that Thomas had bought a large number of CDs from Best Buy, the implication being that someone who buys CDs wouldn't use Kazaa to download songs.

Eric StanleyStanley was Thomas' previous expert, but he was called by plaintiffs for a simple purpose: to undermine Thomas' credibility on the hard drive issue. He did so by testifying that he had been told by Thomas and her former attorney Brian Toder that her hard drive had been replaced in early 2004, when the true date was March 2005. Stanley said he only found out the truth when he examined the hard drive and found a sticker indicating that it hadn't been manufactured until January 2005. (Plaintiffs' theory is that Thomas lied about her hard drive being replaced in 2004, to make it seem that it was in her computer in Feb. 2005, when MediaSentry detected the alleged infringement. So when the experts examined the drive, they would have expected to see evidence of p2p use; seeing none, they would exonerate her. Her alleged ruse fell apart once it became clear that the drive had actually been replaced in March 2005.)

Jammie ThomasPlaintiffs called Thomas. Her testimony was surprisingly uneventful, and devoid of drama. Watching the jurors as she testified, I got no impression at all of what they thought of her, or whether they believed her. (The jury in the first trial decidedly did not.) Thomas has a rather flat affect, and Reynolds' examination of her produced few sparks. The main points:

Thomas is intelligent, and is far from a computer or web newbie. She has a B.S. in business administration and took a law class as an undergrad that covered copyright. She even did a case study on Napster, concluding that it was legal (this was before it really was legal). She regularly uses computers and the web at work, and has her own MySpace page and accounts at various sites. She works for the Mille Lacs Band of Ojibwe Indians in their Department of Natural Resources and Environment, coordinating an environmental cleanup grant.

Thomas is "Tereastarr." She testified she has used that user ID for 16 years on sites including MySpace, Match.com, Wal-Mart, and Best Buy, among others, and as her user ID on her password-protected computer.

Thomas admitted that she enjoys the music of many of the bands whose songs were detected by MediaSentry in her shared folder, including Lacuna Coil, Chevelle, Creed, Enya, Dream Theater, and AFI.

Thomas insists that she had never heard of Kazaa until this lawsuit.

Shown the MediaSentry screenshots of the shared folder associated with her IP address, she insisted, "It is not mine."

The defense did not examine Thomas at this time; they will do so as part of their case-in-chief, and plaintiffs will get a chance to cross. There is still much that I would like to hear from her, but in a nutshell: "How on earth do you explain the mountain of evidence against you? The IP address assigned to you, "tereastarr@KaZaA," the MAC address, your changing date of the hard drive swap, etc.? Do you have a remotely plausible story to tell for what actually did happen?" Hopefully Thomas' return to the stand will be more illuminating.

Betsy BrownPlaintiffs' final witness of the day was Brown, a Warner Bros. Records contract administrator who testified as to her company's ownership of 3 songs. The defense did not object to the introduction of the certified copies of the registrations, or to her identification of the songs at issue.

What's nextPlaintiffs have 3 more witnesses, all of whom I believe will testify as to copyright ownership, and who should be brief. The defense will call Thomas and her expert, University of Minnesota computer scientists Dr. Yongdae Kim. Camara told the court it is possible that testimony will be done by the end of tomorrow, but Judge Davis noted that he must leave early tomorrow, and court is dark Thursday. Closing arguments and the start of jury deliberations will likely take place Friday. [UPDATE: I'm now told that court will be in session Thursday, so there's a good chance the trial may be wrapped up this week.]

3 comments:

Is there some indication as to why Judge Davis threw a temper tantrum regarding Dr. Jacobson's "external hard drive" testimony? Was this just pour encourager les autres grandstanding, or was he genuinely upset?

I wouldn't call it a "temper tantrum." I think Judge Davis was genuinely angry; he thought plaintiffs' counsel should have disclosed the info as soon as they found out about it.

But I do think that Reynolds' explanation was completely believable: it was a very minor issue that he heard from Jacobson only in passing. Remember: it was merely an additional basis for believing that the external drive exists -- an external drive that has no direct connection to the alleged infringement. I don't think Reynolds contemplated the new info even coming up at trial.

It would seem her case, at this juncture, would be to claim that someone hacked her system and setup Kazaa for the purpose of distributing media. I could easily offer expert testimony showing how this could be done with very little effort on the cracker's behalf. I believe there is historical evidence of this happening on previous victim's computers.

Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.

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About This Blog and Me

Welcome to Copyrights & Campaigns. This blog provides news and analysis of copyright, First Amendment, and related issues from a pro-copyright-owner perspective, with emphasis on the interaction of these issues with campaigns and the political process.

Between college and law school, Ben worked as a political reporter in Washington, DC at Roll Call newspaper and the Cook Political Report. Ben also served as a consultant to CBS News during the 1994 election cycle, helping prepare producers and correspondents for the election night broadcast. A detailed bio is available here.

This is Ben's personal blog and does not necessarily represent the views of any past, present, or future clients or employers. Nothing herein constitutes legal advice.

Ben lives in Los Angeles and can be reached at copyrightsandcampaigns [at] gmail.com.

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